Clint Bolick

Terrell v. Torres, 248 Ariz. 47, 456 P.3d 13 (2020), as amended (Feb. 21, 2020). Signed Timmer's majority opinion.

Holding(s): Held that a contract regarding the treatment of a divorced couple's embryos could not be interpreted by a court to make one section overrule another section of the contract (9). The court also rejected the lower court's use of a balancing test, holding that the terms of the contract were clear and should be enforced (9). 

Analysis: The Court "appl[ied] ordinary interpretive principles to arrive at its meaning. See Kass, 696 N.E.2d at 180[.]" (5) "When interpreting a contract, [the Court] seek[s] to discover and effectuate the parties’ expressed intent." (5) The Court started with paragraph 10(H) and noted that "[r]ead in isolation, paragraph 10(H) d[id] not reveal how a court would choose between the options if the parties were unable to agree on the disposition of the embryos." (6) However the Court found a note, , a “note” in paragraph 10 warned that “[e]mbryos cannot be used to produce pregnancy against the wishes of the partner." (6) "Because paragraph 10 unambiguously requires one party’s express, contemporaneous permission before the other can use the embryos to achieve a pregnancy after divorce, the family court could not award the embryos to one party against the other’s wishes." (7) " Thus, the only choice available to the family court under paragraph 10(H) was donation of the embryos, which did not require contemporaneous consent of the parties. See Agreement ¶ 10(2)." (7) 

Background: In June 2014, Torres, facing cancer treatment that could lead to infertility, decided to create and freeze embryos using her eggs and donor sperm. Her then-boyfriend, Terrell, initially declined but later agreed to be the sperm donor. In July, Torres and Terrell signed a series of pre-printed consent forms required by the Fertility Treatment Center (FTC) for in vitro fertilization (IVF), including an "Embryo Cryopreservation & Embryo Disposition" Agreement. This Agreement specified that the embryos would be jointly owned, requiring mutual consent for their use or disposition.

The Agreement outlined three possible dispositions if the couple separated or divorced: discard the embryos, donate them to another couple, or allow one partner to use them with the other’s contemporaneous permission. It also included a note stating that embryos could not be used to create a pregnancy against the partner’s wishes and required both parties' written consent for unilateral use in the event of divorce. When Torres and Terrell divorced in 2017, they were unable to agree on the embryos' disposition. Torres wanted to use the embryos for future implantation but Terrell did not want father a child with Torres and did not consent. The family court initially balanced their interests and decided in favor of donation. However, the court of appeals reversed this decision, interpreting the Agreement as allowing the court to use discretion in either awarding the embryos to Torres or directing their donation, and concluded that the family court had erred by not awarding the embryos to Torres. The dissenting opinion in the court of appeals argued that the Agreement required donation and criticized the majority for not respecting the family court's discretion.  This Court asked, "whether paragraph 10(H) of the Agreement le[ft] the dispositional choice to the courts’ discretion[.]" (5) 

Agreement:

• Paragraph 10: "described three alternate dispositions in the event the couple separated, divorced, died, or became incapacitated: (1) discard the embryos, (2) donate the embryos to another couple, or (3) allow one partner to use the embryos with the contemporaneous permission of the other." (2-3)  "Paragraph 10 ultimately asked the parties to indicate joint disposition choices under different scenarios by checking boxes and initialing those choices." (3)
• Paragraph 10(H): "Divorce or Dissolution of Relationship. In the event the patient and her spouse are divorced or the patient and her partner dissolve their relationship, we agree that the embryos should be disposed of in the following manner (check one box only): [1] A court decree and/or settlement agreement will be presented to the Clinic directing use to achieve a pregnancy in one of us or donation to another couple for that purpose. [2] Destroy the embryos." (3)
• Note in Paragraph 10: “[E]mbryos cannot be used to produce pregnancy against the wishes of the partner. For example, in the event of a separation or divorce, embryos cannot be used to create a pregnancy without the express, written consent of both parties, even if donor gametes were used to create the embryos.” (3) 

State v. Arevalo, 249 Ariz. 370, 470 P.3d 644 (2020). Wrote concurrence.

Holding(s): The Court, "vacate[d] the court of appeals’ decision, affirm[ing] the trial court’s ruling, and remand[ed to the trial court for further proceedings." (11) The court found that § 13-1202(B)(2) violated substantive due process. The court explained that while statutes are presumed constitutional, they must have a substantial and personal nexus between a defendant’s status and the crime committed. In this case, § 13-1202(B)(2) increased penalties for defendant who identify as a gang member, but it did not require any connection between the gang membership and the crime. The court reviews the constitutionality of the statute under substantive due process, rejecting the notion that merely being a gang member justifies enhanced penalties. The court cites the case of Scales v. United States, which established that criminal liability based on membership in an organization required a significant connection to criminal conduct.

Background:  Arevalo faced charges in two separate cases. He admitted to being a gang member when questioned by police. Under A.R.S. § 13-1202(B)(2), Arevalo faced enhanced penalties for these charges because he was a self-identified gang member, making his offenses felonies instead of misdemeanors. Arevalo argued that this sentencing enhancement was unconstitutional because it punished him solely for his gang membership. The trial court agreed and dismissed the charges, ruling the enhancement violated due process. The State appealed, and the court of appeals reversed the trial court’s decision, rejecting Arevalo's constitutional claims. 

Concurrence: Justice Bolick wrote separately to address the application of the presumption of statutory constitutionality. He argued for discarding this presumption, which historically favored government laws even when individual liberties were at stake. Bolick believed that this presumption contradicted the fundamental principle that constitutions were designed to protect individual rights, not to shield government power.

He noted that while Arizona courts had adopted this presumption from federal jurisprudence, it had become more pronounced, creating a significant burden for those challenging the constitutionality of laws. Bolick argued the application of this presumption remained problematic. He highlighted the Court’s struggle with determining when the presumption should be set aside, especially in cases involving fundamental rights versus peripheral ones.

Specifically, he argued that the presumption of constitutionality when reviewing laws should be removed because it biases the court in favor of the state and contradicts the idea that government is designed to protect individual liberty. (12) The court had previously removed the presumption when affecting fundamental liberties, but there is a gray area. (13) He argued that separation of powers requires that branches check each other willingly. (14) 

Bolick emphasized that the judiciary’s role is to ensure that legislative actions do not exceed constitutional bounds, as articulated in Marbury v. Madison. He criticized the presumption of constitutionality as conflicting with the judiciary’s duty to conduct de novo review.

He also highlighted that the presumption has faced increasing scrutiny and criticized the notion that it imposes an undue burden on those challenging laws. Bolick urged for the abolition of the presumption to better align with the judiciary's role in protecting individual rights and ensuring laws adhere to constitutional limits. He concluded, "We should dispense with the presumption. Although deeply embedded in our jurisprudence, it should not continue to subordinate the essential role of the independent judiciary in protecting individual rights that was so central to our constitutional design. On this point our constitution furnishes the necessary counsel: 'A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.' Ariz. Const. art. 2, § 1." (18-19)

Justice Clint Bolick provides a behind-the-scenes look at life as a State Supreme Court Justice and shares his experiences working with now-Supreme Court Justice Clarence Thomas.

Justice Clint Bolick received the 2023 The Scalia Award for Restoring the Balance of Government.

Justice Clint Bolick who is up for retention in the Nov. 5 election, recused himself from participating in a court challenge to Proposition 137, dealing with the future of AZ retention elections.

Justice Clint Bolick's May 2024 AZ Central's Op-Ed about Arizona's merit-based judicial selection process.  I don't need to be a Supreme Court justice. But Arizona needs the system that got me here

Justice Clint Bolick was one of four AZ Supreme Court Justices who voted to uphold Arizona's abortion ban after the Dobbs decision.

Served as Vice President for Litigation at the Goldwater Institute 

Served as Vice President for Litigation at the Institute for Justice.

As an attorney Justice Bolick, "litigated in support of school choice, private property rights, freedom of speech, and federalism, and against racial classifications and government subsidies."

Bush, Jeb, and Clint Bolick. Immigration Wars: Forging an American Solution. HarperCollins, 2014.

“…[o]ur state constitutions were intended to be the primary source of our freedoms. It was only in the 1950s that this began to change, and they remain a potentially vibrant source of protections for our liberties. As the U.S. Supreme Court grows more federalist in its decisions—obviously, abortion is one example that comes to people’s minds, but a whole host of issues are either being returned to the states or are subject to a more hands-off attitude from the U.S. Supreme Court—another thing that is really important to know about state constitutions is that we, as state judges, are free to provide greater protections for individual rights than the U.S. Supreme Court does under the federal Constitution, but not fewer. I have always called that the freedom ratchet.”

Justice Clint Bolick provides a behind-the-scenes look at life as a State Supreme Court Justice and shares his experiences working with now-Supreme Court Justice Clarence Thomas. Additional topics discussed include (but are not limited to):

• Free Enterprise
• School Choice
• Educational Savings Accounts
• Family Savings Accounts
• State Constitutions

Molera v. Hobbs, 250 Ariz. 13, 474 P.3d 667 (2020). Signed Timmer's opinion. 

Holding(s): The Court reversed in part and affirmed in part. The Court held that the initiative should be placed on the November 2020 ballot. The Court held that the 100 word description complied with A.R.S. § 19-102(A) because it did not exclude or misrepresent any pertinent aspects of the initiative. (12) Additionally, the Court held that only those signatures collected by an employee while violating the law were to be struck, not all signatures collected by that employee when not breaking the law--because this would go against legislative purpose. (17) 

Background:  In the case of Molera v. Reagan, 245 Ariz. 291 (2018), the Court disqualified the “Invest in Education Act” initiative from the 2018 ballot due to non-compliance with A.R.S. § 19-102(A), which requires a 100-word description of the initiative’s principal provisions on petition sheets. In 2020 the Committee, a political action group, sought to place the “Invest in Education Act” initiative on the 2020 ballot. To qualify, they needed 237,645 valid signatures. On July 2, 2020, they submitted 435,669 signatures, of which 377,456 were deemed eligible for verification. Challengers, opposing the Initiative, filed a complaint on July 10, arguing that the 100-word description on the petition did not meet statutory requirements and that the measure lacked sufficient valid signatures due to improper payments to circulators. The superior court agreed that the description did not comply with the law and blocked the Initiative from the ballot, but it rejected the challenge regarding signatures. 

The current issue was whether the 100-word description for the new “Invest in Education Act” met the requirements of § 19-102(A) and whether petition circulators were compensated in accordance with A.R.S. § 19-118.01(A), which banned payment based on the number of signatures collected. The Court concluded that the new initiative met the description requirements and that the petition circulators were paid appropriately, thus qualifying the initiative for the November 3, 2020 General Election ballot. 

Rule(s):

• "Section 19-102(A) requires initiative sponsors to insert on petition signature sheets 'a description of no more than one hundred words of the principal provisions of the proposed measure.' The description must be followed by this language: Notice: This is only a description of the proposed measure (or constitutional amendment) prepared by the sponsor of the measure. It may not include every provision contained in the measure. Before signing, make sure the title and text of the measure are attached. You have the right to read or examine the title and text before signing. § 19-102(A)" (4)
• A challenge to a measure’s 100-word description under A.R.S. § 19-102(A) may be based on two grounds. The first is if the description omits a “principal provision” of the measure, which can disqualify the measure from the ballot without further analysis. The Court found this was highlighted in Molera v. Reagan, where it was noted that while an omission could create "a significant risk of confusion or unfairness," but such considerations are irrelevant if a principal provision is missing. (5) Section 19-102(A) requires that all principal provisions be included in the description.
• "Principal provisions" of an initiative are its most significant and impactful features, not every detail of the measure. They represent the core aspects that prospective signatories need to understand quickly to decide whether to support the initiative. The Court found the 100-word description functions like an "elevator pitch" to summarize these key elements, allowing voters to make a prompt decision about signing the petition. (5) Overall the Court found, this description must effectively convey the principal provisions’ general objectives without being misleading or incomplete. The description should not be too detailed but must provide a clear overview that alerts a reasonable person to the measure’s essential points. Courts assess if the description misrepresents or obscures these key aspects, ensuring it is neither fraudulent nor confusing. A description that is objectively false or fails to convey the initiative's main features may be disqualified.
• "The 100- word description in the petition signature sheets for the Initiative provides: The Invest in Education Act provides additional funding for public education by establishing a 3.5% surcharge on taxable income above $250,000 annually for single persons or married persons filing separately, and on taxable income above $500,000 annually for married persons filing jointly or head of household filers; dedicates additional revenue to (a) hire and increase salaries for teachers, classroom support personnel and student support services personnel, (b) mentoring and retention programs for new classroom teachers, (c) career training and post-secondary preparation programs, (d) Arizona Teachers Academy; amends the Arizona Teachers Academy statute; requires annual accounting of additional revenue. The notice required by § 19-102(A) followed the description. See supra ¶ 6." (7)

The Act: The “Invest in Education Act” (I-31-2020) is an Arizona ballot initiative designed to increase funding for public education. The key provisions of the Act are as follows:

• Increase in Income Tax Rates: The Act proposes to increase income tax rates on high-income individuals. Specifically, it would impose a new tax bracket for individuals earning over $250,000 per year (or $500,000 for married couples filing jointly), with a higher rate of 3.5% applied to income exceeding these thresholds.
• *Funding Allocation: The additional revenue generated from these increased tax rates is earmarked for public education funding. The Act directs these funds to be used for:
  • Enhancing teacher salaries.
  • Improving school facilities and infrastructure.
  • Expanding educational programs and services.
• Budgetary Impact: The Act aims to provide a significant boost in funding for K-12 education and potentially impact community colleges and universities, aiming to address long-standing issues of underfunding in the state’s education system.
• Implementation and Oversight: The initiative outlines the processes for collecting and managing the additional tax revenue, as well as ensuring that the funds are appropriately used for the intended educational purposes.

Overall, the Act sought to address educational funding gaps in Arizona by increasing taxes on high-income earners and dedicating the additional revenue to public education.

Gomez, Gloria Rebecca. “AZ Supreme Court Justice Recuses in Abortion Ballot Measure Lawsuit Where His Wife Is a Defendant.” Arizona Mirror, 1 Aug. 2024.

Avitia v. Crisis Preparation & Recovery Inc., 256 Ariz. 198, 536 P.3d 776 (2023). Authored opinion.

Holding: The Court, "h[e]ld that the statutory duty to report child abuse or neglect under A.R.S. § 13-3620(A) d[id] not encompass reporting a risk of future harm." (2) The Court "also h[e]ld that mental health professionals owe a duty to third parties based not on foreseeability of harm, but on their special relationship and public policy. Because prior judicial decisions found a duty in such circumstances based on foreseeability, see Hamman v. County of Maricopa, 161 Ariz. 58 (1989) and Little v. All Phoenix South Community Mental Health Center, 186 Ariz. 97 (App. 1996). (2) The Court found that in this case, Crisis Prep complied with its statutory duties by petitioning for involuntary treatment based on its evaluation. Given that the court's prior rulings (Hamman and Little) are overturned and no common law duty remains, the trial court’s summary judgment for Crisis Prep was affirmed.

Background: In this case [the Court was] asked to decide whether mental health professionals have a statutory or common law duty to third parties for harm caused by a patient under their care." (2)  Avitia sued Crisis Preparation and Recovery, Inc. (Crisis Prep) for wrongful death after his twin boys were tragically drowned by their mother, who had a long history of severe mental health issues. The mother had been treated by numerous mental health professionals, including those from Crisis Prep. In 2013, she was evaluated but deemed not seriously mentally ill. By 2014, after a severe psychotic episode, she was involuntarily committed to a behavioral health facility. She was later released in 2015, sought further treatment but was discharged. She late drowned her twin boys. Avitia then filed a wrongful death claim against Crisis Prep, alleging negligence and failure to report or protect the children. The court granted summary judgment in favor of Crisis Prep, finding no statutory duty to report under A.R.S. § 13-3620(A) and rejecting the common law duty to warn or protect based on foreseeability. Avitia appealed, questioning whether the statutory duty included reporting future risks and whether the common law duty to warn remained valid.

Applicable Law(s): "Section 13-3620(A) provides in relevant part: Any person who reasonably believes that a minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect that appears to have been inflicted on the minor . . . shall immediately report or cause reports to be made of this information to a peace officer . . . . For the purposes of this subsection, 'person' means: 1. Any physician, physician’s assistant, optometrist, dentist, osteopathic physician, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient." (6)

Timothy B. v. Dep't of Child Safety, 252 Ariz. 470, 505 P.3d 263 (2022), holding modified by Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, 533 P.3d 202 (2023). Bolick concurred in result.

Concurrence: Bolick concurred in judgement stating, “I enthusiastically join the result here….[T]he Court has taken significant steps to reconcile our jurisprudence with the fundamental rights of parents under the United States Constitution and Arizona law. However, I write separately because the framework within which we decide these cases still falls significantly short of constitutional requirements.” (14)

Justice Bolick argued that parents have a fundamental right to control and raise their children and that he government must meet a high standard in order interfere with this right. Specifically, he argued that it must demonstrate a compelling purpose and use narrowly tailored means. Arizona law reflects this principle, requiring that any infringement on parental rights must be justified by a compelling governmental interest and must be the least restrictive means available.

Bolick found “In this case, the father, Timothy B., gravely jeopardized his rights to and relationship with his daughter by committing very serious crimes. Indeed, A.R.S. § 8-533(B)(4) provides as a basis for termination of parental rights that 'the child will be deprived of a normal home for a period of years.'" (14) 

Bolick stated: “The opinion today takes two important steps to achieve a just result in this case. First, consistent with statutory intent, it construes ‘normal home’ in § 8-533(B)(4) to encompass a stable home in which the parent does not have an ongoing physical presence. Supra ¶¶ 24–27. To hold otherwise, as the Court recognized in a similar context in Jessie D., ‘implies that incarcerated parents could never adequately maintain a parent-child relationship with their young children.’ 251 Ariz. at 581 ¶ 17. Second, the Court requires the trial court to consider whether a permanent guardianship is possible here as an alternative to termination. A guardianship appointment would protect Timothy’s rights, preserve the father-daughter relationship, and achieve the stable home environment that DCS seeks. As such, it is a classic example of a ‘less restrictive means’ that Arizona law commands us to consider. § 1-601(B).” (15)

Justice Bolick argued that while the Court's framework for parental rights termination involves a two-step inquiry—first proving a statutory ground for termination and then assessing the child's best interests—this approach diverges from constitutional requirements. Overall, Bolick commended the Court believing the decision for recognized the significance of parental rights and the need to align with constitutional due process principles.